# EUR-Lex - 52013PC0029 - EN

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# 52013PC0029

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, as regards the opening of the market for domestic passenger transport services by rail and the governance of the railway infrastructure /* COM/2013/029 final - 2013/0029 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

In its 2011 White Paper on transport policy
adopted on 28 March 2011[1],
the Commission put forward its vision of a Single European Railway Area with an
internal railway market where European railway undertakings can provide
services without unnecessary technical and administrative barriers.

Several policy initiatives have recognised
the potential of rail infrastructure as a backbone for the internal market and
a driver of sustainable growth. The European Council conclusions of January
2012 highlighted the importance of unleashing the growth potential of a fully
integrated Single Market, including measures with regard to network industries.
The Commission Communication on Action for Stability, Growth and Jobs adopted
on 30 May 2012 stressed the importance of further reducing the regulatory
burden and barriers to entry in the rail sector. Likewise, the Commission
Communication on strengthening the governance of the single market, adopted on
8 June 2012[2]
also stressed the importance of the transport sector.

At the same time, the Commission has
proposed for the next 2014-2020 multi-annual financial framework to create the ‘Connecting
Europe Facility’ (CEF) and allocate € 31.7 billion to transport
infrastructure out of the total € 50 billion envelope.

In the last decade, three legislative
"railway packages" have progressively opened up national markets and
making railways more competitive and interoperable at the EU level. However,
despite the considerable development of the ‘EU acquis’, the modal share
of rail in intra-EU transport has remained modest. This proposal targets the remaining
obstacles that limit the effectiveness of railway markets.

1.2.      Problems to be addressed

Remaining obstacles relate first of all to
the access to the market for domestic passenger services. In many Member States
these markets are closed to competition, which does not only limit their development,
but also creates disparities between those Member States that have opened their
markets, and those that have not.

The majority of domestic passenger services
cannot be provided on a commercial basis alone and require support from the
State. They are performed under public service contracts. Therefore this
legislative package also addresses the issue of competition for public service
contracts, and additional points such as the availability of rolling stock for
potential bidders for such contracts, and integrated timetabling and ticketing
systems where they benefit the passenger.

A second set of problems which prevent the
rail market from developing its full potential are issues relating to the
governance of infrastructure managers. Since infrastructure managers are
natural monopolies, they do not always react to the needs of the market and its
users, thus hindering the performance of the sector as a whole. In a number of
Member States infrastructure managers are unable to fulfil their tasks, since
their functions are separated between different bodies. Moreover, the current
legal framework has not led to improved cross-border cooperation among infrastructure
managers.

In addition, a number of market entry
barriers result from situations where infrastructure management and transport
operations are part of the same integrated structure. In such a case,
infrastructure managers face a conflict of interests as they have to take
account of the business interests of the integrated structure and its transport
subsidiaries and have an incentive to discriminate in the provision of access
to the infrastructure.

Finally, integrated structures make it much
more difficult to enforce the separation of accounts between infrastructure
management and transport operations. Regulators find it difficult to trace
financial flows between the different subsidiaries and the holding company in
an integrated structure. Accountancy tools allow for the artificial increase or
decrease of the results of the respective subsidiaries. Cross-subsidising
practices and transfers of infrastructure funds to competitive activities are a
serious market entry barrier for new operators that do not have the possibility
to rely on such funds. Cross-subsidising practises may also imply State aid
granted to competitive activities.

1.2       General Objectives

The main objective of the European Union’s
transport policy is to establish an internal market through a high degree of
competitiveness and the harmonious, balanced and sustainable development of
economic activities. The 2011 Transport White Paper stated that rail should
account for the majority of medium-distance passenger transport by 2050. This
modal shift would contribute to the 20 % reduction of greenhouse gas emissions
foreseen in the Europe 2020 Agenda for smart, sustainable and innovative growth[3]. The White Paper concluded that
no major change in transport would be possible without the support of adequate
infrastructure and a smarter approach to using it.

The overall objective of the Fourth Railway
Package is to enhance the quality and efficiency of rail services by removing any
remaining legal, institutional and technical obstacles, and fostering the
performance of the railway sector and its competitiveness, in order to further
develop the Single European Railway Area.

1.3.      Specific Objectives

This proposal encompasses provisions with
the following aims:

a) The opening of the market for domestic
passenger transport services by rail with
the objective of intensifying competitive pressure on domestic rail markets, in
order to increase the quantity and improve the quality of passenger services.
These proposals have to be seen alongside the proposed amendments to Regulation
1370/2007/EC (Public Service Obligations) and in this context aim to increase
the efficiency of the public financing of passenger services.

b) Enhancing governance of the infrastructure
manager with the objective of ensuring equal access to the infrastructure. This
should be achieved through the removal of conflicts of interest affecting decisions
of the infrastructure manager on market access and the elimination of the
potential for cross-subsidisation, which exists in integrated structures. The
proposal also aims to ensure that all of the infrastructure manager’s functions
will be managed in a consistent manner. Finally, the proposal aims at
strengthening coordination between infrastructure managers and rail operators
to better address market needs and at enhancing cross-border cooperation
between infrastructure managers.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

In order to support the Commission in the
impact assessment process, an external consultant was asked to prepare a
support study and to undertake a targeted consultation. The study was started
in December 2011 and the final report was delivered in December 2012.

To gather the views of the stakeholders, a variety
of targeted consultation methods was preferred to an open consultation. Between
1 March and 16 April 2012, tailored questionnaires were sent to 427
rail-related stakeholders (railway undertakings, infrastructure managers, public
transport ministries, safety authorities, ministries, representative bodies, workers’
organisations etc.). The response rate was 40 %. The views of passengers
were collected through a Eurobarometer survey that reached 25 000 members of
the public evenly spread over the 25 Member States with railways. The network
of the Committee of the Regions was used to reach local and regional
authorities and the Sectoral Dialogue Committee on railways has also been
consulted.

These consultations were complemented with a
stakeholder hearing held on 29 May 2012 (with some 85 participants), a
conference with some 420 participants on 24 September 2012 and with interviews
with specific stakeholders throughout 2012. Commission staff met with
representatives from the Community of European, the European Passenger Transport
Operators, the European Transport Workers’ Federation, the European Passengers’
Federation, the European Rail Infrastructure Managers and UITP – the
International Association of Public Transport. Visits and face-to-face
interviews with stakeholders were also organised in Italy, France, Germany, the
Netherlands, Poland, Hungary, Sweden and the United Kingdom.

The majority of stakeholders agreed during
the targeted consultation that the quality of rail services and the
competitiveness of the sector in the EU were being affected by different access
barriers for railway undertakings. 69 % found different interpretation of
legislation to be an issue. Infrastructure capacity constraints were considered
to be the main access barrier for railway undertakings (quoted by 83 %).

The result of the consultation showed that
views are highly polarised regarding the appropriateness of solutions that
should ensure the independent and efficient governance of railway infrastructure.
A large majority of transport ministries, competition authorities, regulatory
bodies, independent infrastructure managers and railway undertakings,
passengers and freight forwarders’ associations advocated a complete separation
which would ensure full transparency and a level playing field for all
operators. In contrast, holding companies, infrastructure managers depending on
such holdings and workers’ representatives referred to scientific literature that
highlights the disadvantages of separation, such as higher transaction costs
and the risk of disconnection inefficiencies. These stakeholders thought that a
stronger role of regulatory oversight could be sufficient to solve the issues.
64 % of respondents supported the idea of creating a specific body of
representatives from all infrastructure users to ensure interests are taken
into account in a non-discriminatory way.

Throughout the consultation process the
Commission took a proactive approach to prompting stakeholders to participate.
Given that all relevant parties were given the opportunity to express their
opinions, the Commission’s minimum consultation standards were met.

Based on the external study mentioned above
and the conclusions of the stakeholder consultation process, the Commission
made a quantitative and qualitative assessment of the impact of the proposed
measures. This evaluation examined alternative options for new measures aiming to
modernise the existing regulatory framework.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

3.1. Definition of the infrastructure
manager (Article 3(2))

The clarification sets out all the relevant
functions of infrastructure management that are to be performed by the
infrastructure manager, in order to ensure that all these functions are
fulfilled in a consistent manner. It abolishes the option set out in the
existing text for functions of the infrastructure manager on a network or part
of a network to be allocated to different bodies or firms. It also clarifies
the meaning of the different functions of infrastructure management.

3.2. Definition of international passenger
services (Article 3, point 5)

The fifth Point of the existing Article 3
defines international passenger services. With the opening of the market for
domestic passenger transport services by rail, the distinction between
international and domestic passenger services becomes irrelevant for the
purpose of this Directive. This definition is therefore deleted.

3.3. Separation of accounts within an
integrated group (Article 6(2))

The existing Article 6(2) allows for the
possibility of organising infrastructure and transport services within a single
undertaking while fulfilling the requirements of a separation of accounts.
Since the proposal contains specific rules on the separation of the two activities,
this provision has to be deleted.

3.4. Institutional separation of the infrastructure
manager (Article 7)

This provision establishes that
infrastructure managers should be able to fulfil all the necessary functions
for the sustainable development of the infrastructure. It also introduces the institutional
separation of the infrastructure manager from transport operations, by prohibiting
the same legal or natural person from having the right to control or exercise
influence over an infrastructure manager and a railway undertaking at the same
time. It allows for the possibility of a Member State to be owner of both legal
entities, in which control should be exercised by public authorities that are
separate and legally distinct from each other.

3.5. Independence of infrastructure
managers within vertically integrated undertakings (Articles 7a and 7b)

The proposal allows vertically integrated
undertakings, including those with a holding structure, to maintain ownership
of the infrastructure manager. However, it clarifies that this is only permissible
if conditions are fulfilled which ensure that the infrastructure manager has
effective decision-making rights for all its functions. It further sets out
that this must be guaranteed by strong and efficient safeguards protecting the
infrastructure manager’s independence. It specifies that these safeguards should
be in place with regard to the structure of the undertaking, including the
separation of financial circuits between the infrastructure manager and other
companies of the integrated group. It also sets out rules on the management
structure of the infrastructure manager.

3.6. Verification of compliance (Article
7c)

This provision establishes a possibility
for Member States to limit access rights of railway operators which are part of
vertically integrated undertakings, in case the Commission is not a position to
confirm that safeguards to protect the independence of the infrastructure
manager have been effectively implemented.

3.7. Coordination committee (Article 7d)

This provision seeks to ensure good
coordination between the infrastructure manager and the users of the network
which are affected by his decisions, including applicants, representatives of
passengers and users of freight services, and regional and local authorities. It
lists the issues on which the infrastructure manager should take advice from
the users which include their needs on the development of the infrastructure,
performance targets, allocation and charging.

3.8. European Network of Infrastructure
Managers (Article 7e)

The proposal creates a forum for the
cooperation of infrastructure managers across borders, with a view to developing
the European rail network. This includes cooperation on the establishment of
the core network corridors, the rail freight corridors and the implementation
of the European Rail Traffic Management System (ERTMS) deployment plan. The
proposal also covers the role to be played by this Network in monitoring the performance
of infrastructure managers with the aim of improving the quality of services
offered by infrastructure managers.

3.9. Conditions of access to railway
infrastructure (Article 10)

Article 10(2) is amended to grant to
European railway undertakings access rights for the purpose of operating
domestic passenger services. Since the distinction made in the existing
legislation between international and domestic services is removed, Article
10(3) and 10(4), whose purpose had been to determine the international or
domestic nature of a service, have to be deleted.

3.10. Limitation of the right of access
(Article 11)

This provision gives Member States the
possibility to limit access rights for the purpose of operating domestic or
international services if the exercise of this right would compromise the
economic equilibrium of a public service contract. As is currently the case for
international services, the provision stipulates that regulatory bodies have the
responsibility to determine whether the economic equilibrium of a public
service contract is being compromised by a domestic service according to common
procedures and criteria.

3.11. Common information and integrated
ticketing schemes (Article 13a)

In order to ensure that passengers continue
to benefit from network effects, this provision gives Member States the possibility
to establish information and integrated ticketing schemes common to all railway
undertakings operating domestic passenger services in a way that does not
distort competition. In addition, it provides for the adoption of coordinated
contingency plans by railway undertakings to provide assistance to passengers if
there is a major disruption of traffic.

3.12 Capacity rights (Article 38(4))

With a view to giving all market players
sufficient legal certainty to develop their activities, this provision is amended.
It defines the time frame within which regulatory bodies should assess whether
the economic equilibrium of a public service contract would be compromised.
This is consistent with the process for the allocation of infrastructure
capacity.

2013/0029 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Directive 2012/34/EU of the European Parliament and of the Council of
21 November 2012 establishing a single European railway area, as regards the
opening of the market for domestic passenger transport services by rail and the
governance of the railway infrastructure

(Text with EEA relevance)

THE
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 91 thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[4],

Having regard to the opinion of the
Committee of the Regions[5],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Over the past decade, the
growth of passenger traffic by rail has been insufficient to increase its modal
share in comparison to cars and aviation. The 6 % modal share of passenger
transport for rail in the European Union has remained fairly stable. Rail
passenger services have not kept pace with evolving needs in terms of offer or quality.

(2)       The Union markets for
freight and for international passenger trains have been opened to competition since
2007 and 2010 respectively through Directives 2004/51/EC[6] and 2007/58//EC[7]. In addition, some Member
States have opened their domestic passenger services to competition, either by
introducing open access rights or competitive tendering for public service
contracts or both.

(3)       Directive 2012/34/EU of
the European Parliament and of the Council of 21 November 2012 establishing a
single European railway area[8]
establishes a single European railway area with common rules on the governance
of railway undertakings and infrastructure managers, on infrastructure
financing and charging, on conditions of access to railway infrastructure and
services and on regulatory oversight of the rail market. With all these
elements in place, it is now possible to complete the opening of the Union railway
market and reform the governance of infrastructure managers with the objective
of ensuring equal access to the infrastructure.

(4)       Directive 2012/34/EU requires
the Commission to propose, if appropriate, legislative measures in relation of
the opening of the market for domestic passenger transport services by rail and
to develop appropriate conditions to ensure non-discriminatory access to
infrastructure, building on the existing separation requirements between
infrastructure management and transport operations.

(5)       Better coordination
between infrastructure managers and railway undertakings should be ensured
through the establishment of a coordination committee, in order to achieve
efficient management and use of the infrastructure.

(6)       Member States should also
ensure that all functions necessary to the sustainable operations, maintenance,
and development of the rail infrastructure will be managed in a consistent
manner by the infrastructure manager itself.

(7)       Cross-border issues should
be addressed efficiently between infrastructure managers of the different
Member States through the establishment of a European network of infrastructure
managers.

(8)       In order to ensure equal
access to the infrastructure, any conflicts of interest resulting from
integrated structures encompassing infrastructure management and transport
activities should be removed. Removing incentives to
discriminate against competitors is the only way to guarantee equal access to the railway infrastructure. It is a requirement
for the successful opening of the market for domestic
passenger transport services by rail. This should also remove the potential for
cross-subsidisation, which exists in such integrated structures, and which also
leads to market distortions.

(9)       The existing requirements
for the independence of infrastructure managers from railway transport
undertakings, as laid down in Directive 2012/34/EU, only cover the essential functions
of the infrastructure manager, which are the decision-making on train path
allocation, and the decision-making on infrastructure charging. It is however
necessary that all the functions are exercised in an independent way, since
other functions may equally be used to discriminate against competitors. This
is in particular true for decisions on investments or on maintenance which may
be made to favour the parts of the network which are mainly used by the
transport operators of the integrated undertaking. Decisions on the planning of
maintenance works may influence the availability of train paths for the
competitors.

(10)     The existing requirements
of Directive 2012/34/EU only include legal, organisational and decision-making
independence. This does not entirely exclude the possibility of maintaining an
integrated undertaking, as long as these three categories of independence are
ensured. Concerning the decision-making independence it must be ensured that
the appropriate safeguards exclude control of an integrated undertaking over
the decision-making of an infrastructure manager. However, even the full
application of such safeguards does not completely remove all the possibilities
for discriminatory behaviour towards competitors which exist in the presence of
a vertically integrated undertaking. In particular, the potential for
cross-subsidisation still exists in integrated structures, or at least it is
very difficult for regulatory bodies to control and enforce safeguards which
are established to prevent such cross-subsidisation. An institutional
separation of infrastructure management and transport operation is the most
effective measure to solve these problems.

(11)     Member States should
therefore be required to ensure that the same legal or natural person or
persons are not entitled to exercise control over an infrastructure manager
and, at the same time, exercise control or any right over a railway
undertaking. Conversely, control over a railway undertaking should preclude the
possibility of exercising control or any right over an infrastructure manager.

(12)     Where Member States still
maintain an infrastructure manager which is part of a vertically integrated
undertaking, they should at least introduce strict safeguards to guarantee
effective independence of the entire infrastructure manager in relation to the
integrated undertaking. These safeguards should not only concern the corporate
organisation of the infrastructure manager in relation to the integrated
undertaking, but also the management structure of the infrastructure manager,
and, as far as possible within an integrated structure, prevent financial
transfers between the infrastructure manager and the other legal entities of
the integrated undertaking. These safeguards do not only correspond to what is
necessary to fulfil the existing requirements of decision-making independence
of the essential functions under Directive 2012/34/EU, in terms of management
independence of the infrastructure manager, but go beyond those requirements by
adding clauses to exclude that incomes of the infrastructure manager may be
used to fund the other entities within the vertically integrated undertaking.
This should apply independently of the application of fiscal legislation of
Member States and without prejudice to EU state aid rules.

(13)     Despite the implementation
of the safeguards guaranteeing independence vertically integrated undertakings could
abuse of their structure to provide undue competitive advantages for railway
operators belonging to such undertakings, For this reason, without prejudice to
Art 258 of the Treaty on the Functioning of the European Union, the Commission
should verify, upon request of a Member State or on its own initiative, that these
safeguards are effectively implemented and that any remaining distortions of
competition are removed. In case the Commission is not in a position to confirm
that this has been achieved, all Member States should have the possibility to limit
or revoke access rights of the integrated operators concerned.

(14)     Granting
Union railway undertakings the right of access to railway infrastructure in all
Member States for the purpose of operating domestic passenger services may have
implications for the organisation
and financing of rail passenger services provided under a public service
contract. Member States should have the option of limiting such right of access
where it would compromise the economic equilibrium of those public service
contracts and where approval has been given by the
relevant regulatory body.

(15)     Regulatory
bodies should assess the potential economic impact of domestic passenger
services provided under open
access conditions on existing public service contracts following
a request made by interested parties and on the basis of an objective economic
analysis.

(16)     The process
of the
assessment should take into account the need to provide all market players with sufficient legal
certainty to develop their activities. The procedure should be as simple,
efficient and transparent as possible and coherent with the process for the allocation of infrastructure capacity.

(17)     The
assessment of whether the economic equilibrium of the public service contract would
be compromised should take into account predetermined criteria. Such criteria
and the details of procedure to be followed may evolve over time, in particular
in the light of the experience of regulatory bodies, competent authorities and
railway undertakings and may take
into account the specific characteristics of domestic passenger services.

(18)     When
assessing whether the economic equilibrium of the public service contract would
be compromised, regulatory bodies should consider the economic impact of the intended
service on existing public service contracts taking into account its impact on the profitability of any services included in such
public service contracts and the consequences for the net cost to the competent public authority that awarded the
contracts. To make this assessment,
factors such as passenger demand,
ticket pricing, ticketing arrangements, location and number of stops and the timing and frequency of the proposed new
service should be examined.

(19)     In order to increase the
attractiveness of railway services for passengers, Member States should be in a
position to require railway undertakings operating domestic passenger services
to participate in a common information and integrated ticketing scheme for the
supply of tickets, through-tickets and reservations. If such a scheme is
established, it should be ensured that it does not create market distortion or discriminate
between railway undertakings.

(20)     In accordance with the
Joint Political Declaration of Member States and the Commission of 28 September
2011 on explanatory documents[9],
Member States have undertaken to accompany the notification of their
transposition measures with one or more documents explaining the relationship
between the components of a directive and the corresponding parts of national
transposition instruments in justified cases. With regard to this Directive, the
legislator considers the transmission of such documents to be justified,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 2012/34/EU is amended as follows:

1.           Article 3 is amended as
follows:

(a)
Point 2 is replaced by the following:

‘(2)       ‘infrastructure manager’ means any
body or firm ensuring the development, operation and maintenance of railway
infrastructure on a network; development includes network planning, financial
and investment planning as well as building and upgrades of the infrastructure;
operation of the infrastructure includes all elements of the process of train
path allocation, including both the definition and the assessment of
availability and the allocation of individual paths, traffic management and
infrastructure charging, including determination and collection of the charges;
maintenance includes infrastructure renewals and the other asset management
activities’;

(b)
Point 5 is deleted;

(c)
the following new Point 31 is added:

'(31)     'vertically integrated undertaking'
means an undertaking where:

- one or several railway undertakings are owned
or partly owned by the same undertaking as an infrastructure manager (holding
company), or

- an infrastructure manager is owned or partly
owned by one or several railway undertakings or

- one or several railway undertakings are owned
or partly owned by an infrastructure manager';

2.           In Article 6, paragraph 2
is deleted;

3.           Article 7 is replaced by
the following:

‘Article 7

Institutional separation of the infrastructure
manager

1.      Member States shall ensure that the
infrastructure manager performs all the functions referred to in Article 3(2)
and is independent from any railway undertaking.

To guarantee the independence of the
infrastructure manager, Member States shall ensure that infrastructure managers
are organised in an entity that is legally distinct from any railway
undertaking.

2.      Member States shall also ensure the
same legal or natural person or persons are not allowed:

(a)     to directly or indirectly exercise
control in the sense of Council Regulation (EC) No 139/2004[10], hold any financial interest
in or exercise any right over a railway undertaking and over an infrastructure
manager at the same time;

(b)     to appoint members of the supervisory
board, the administrative board or bodies legally representing an
infrastructure manager, and at the same time to directly or indirectly exercise
control, hold any financial interest in or exercise any right over a railway
undertaking;

(c)     to be a member of the supervisory
board, the administrative board or bodies legally representing the undertaking,
of both a railway undertaking and an infrastructure manager;

(d)     to manage the rail infrastructure or
be part of the management of the infrastructure manager, and at the same time
to directly or indirectly exercise control, hold any financial interest in or
exercise any right over a railway undertaking, or to manage the railway
undertaking or be part of its management, and at the same time to directly or
indirectly exercise control, hold any interest in or exercise any right over an
infrastructure manager.

3.      For the implementation of this Article,
where the person referred to in paragraph 2 is a Member State or another public
body, two public authorities which are separate and legally distinct from each
other and which are exercising control or other rights mentioned in paragraph 2
over the infrastructure manager, on the one hand, and the railway undertaking,
on the other hand, shall be deemed not to be the same person or persons.

4.      Provided that no conflict of interest arises
and that confidentiality of commercially sensitive information is guaranteed,
the infrastructure manager may subcontract specific development, renewal and
maintenance works, over which it shall keep the decision-making power, to
railway undertakings or to any other body acting under the supervision of the
infrastructure manager.

5.      Where on the date of entry into force
of this Directive, the infrastructure manager belongs to a vertically
integrated undertaking, Member States may decide not to apply paragraphs 2 to 4
of this Article. In such case, the Member State concerned shall ensure that the
infrastructure manager performs all the functions referred to in Article 3(2)
and has effective organisational and decision-making independence from any
railway undertaking in accordance with the requirements set in Articles 7a to 7c.’

4.           The following Articles 7a to 7e
are inserted:

‘Article 7a

Effective independence of the infrastructure
manager within a vertically integrated undertaking

1.      Member States shall ensure that the infrastructure
manager shall be organised in a body which is legally distinct from any railway
undertaking or holding company controlling such undertakings and from any other
legal entities within a vertically integrated undertaking.

2.      Legal entities within
the vertically integrated undertaking that are active in railway
transport services markets shall not have any direct or indirect shareholding
in the infrastructure manager. Nor shall the infrastructure manager have any
direct or indirect shareholding in any legal entities within the vertically
integrated undertaking active in railway transport services markets.

3.      The
infrastructure manager’s incomes may not be used in order to finance other legal
entities within the vertically integrated undertaking but only in order to
finance the business of the infrastructure manager and to pay dividends to the
ultimate owner of the vertically integrated company. The infrastructure manager
may not grant loans to any other legal entities within the vertically
integrated undertaking, and no other legal entity within the vertically
integrated undertaking may grant loans to the infrastructure manager. Any
services offered by other legal entities to the infrastructure manager shall be
based on contracts and be paid at market prices. The debt attributed to the infrastructure
manager shall be clearly separated from the debt attributed to other legal
entities within the vertically integrated undertaking, and these debts shall be
serviced separately. The accounts of the infrastructure manager and of the other
legal entities within the vertically integrated undertaking shall be kept in a
way that ensures the fulfilment of these provisions and allows for separate
financial circuits for the infrastructure manager and for the other legal
entities within the vertically integrated undertaking.

4.      Without prejudice to Article 8(4), the
infrastructure manager shall raise funds on the capital markets independently and
not via other legal entities within the vertically integrated undertaking. Other
legal entities within the vertically integrated undertaking shall not raise funds
via the infrastructure manager.

5.      The
infrastructure manager shall keep detailed records of any commercial and
financial relations with the other legal entities within the vertically
integrated undertaking and make them available to the regulatory body upon
request, in accordance with Article 56(12).

Article 7b

Effective independence of the staff and management
of the infrastructure manager within
a vertically integrated undertaking

1.      Without prejudice to the decisions of
the regulatory body under Article 56, the infrastructure manager shall have
effective decision-making powers, independent from the other legal entities
within the vertically integrated undertaking, with respect to all the functions
referred to in Article 3(2). The overall management structure and the corporate
statutes of the infrastructure manager shall ensure that none of the other
legal entities within the vertically integrated undertaking shall determine,
directly or indirectly, the behaviour of the infrastructure manager in relation
to these functions.

2.      The members of the management board and
senior staff members of the infrastructure manager shall not be in the
supervisory or management boards or be senior staff members of any other legal
entities within the vertically integrated undertaking.

The members of the supervisory or management
boards and senior staff members of the other legal entities within the
vertically integrated undertaking shall not be in the management board or be
senior staff members of the infrastructure manager.

3.      The infrastructure manager shall have
a Supervisory Board which is composed of representatives of the ultimate owners
of the vertically integrated undertaking.

The Supervisory Board may consult the
Coordination Committee referred to under Article 7d on issues under its
competence.

Decisions regarding the appointment and
renewal, working conditions including remuneration, and termination of the
office of the management board members of the infrastructure manager shall be
taken by the Supervisory Board. The identity and the conditions governing the
duration and the termination of office of the persons nominated by the
Supervisory Board for appointment or renewal as members of the management board
of the infrastructure manager, and the reasons for any proposed decision
terminating the office, shall be notified to the regulatory body referred to in
Article 55. Those conditions and the decisions referred to in this paragraph shall
become binding only if the regulatory body has expressly approved them. The
regulatory body may object to such decisions where doubts arise as to the
professional independence of a person nominated for the management board or in
the case of premature termination of office of a member of the management board
of the infrastructure manager.

Effective rights of appeal to the regulatory
body shall be granted for members of the management board who wish to enter
complaints against the premature termination of the office.

4.      For a period of three years after leaving
the infrastructure manager, members of the Supervisory Board or management board
and senior staff members of the infrastructure manager shall not be entitled to
hold any senior position with any other legal entities within the vertically
integrated undertaking. For a period of three years after leaving those other
legal entities within the vertically integrated undertaking, their supervisory
or management boards' members and senior staff members shall not be entitled to
hold any senior position with the infrastructure manager.

5.      The infrastructure manager shall have
its own staff and be located in separate premises from the other legal entities
within the vertically integrated undertaking. Access to information systems
shall be protected to ensure the independence of the infrastructure manager.
Internal rules or staff contracts shall clearly limit contacts with the other legal
entities within the vertically integrated undertaking to official
communications connected with the exercise of the functions of the
infrastructure manager which are also exercised in relation to other railway
undertakings outside the vertically integrated undertaking. Transfers of staff
other than those referred to under point (c) between the infrastructure manager
and the other legal entities within the vertically integrated undertaking shall
only be possible if it can be ensured that sensitive information will not be
passed on between them.

6.      The infrastructure manager shall have
the necessary organisational capacity to perform all of its functions
independently from the other legal entities within the vertically integrated
undertaking and shall not be allowed to delegate to these legal entities the operation
of these functions or any activities related to them.

7.      The members of the supervisory or management
boards and senior staff of the infrastructure manager shall hold no interest in
or receive any financial benefit, directly or indirectly, from any other legal
entities within the vertically integrated undertaking. Performance-based elements
of their remuneration shall not depend on the business results of any other legal
entities within the vertically integrated undertaking or any legal entities under
its control, but exclusively on those of the infrastructure manager.

Article 7c

Procedure of verification of compliance

1.      Upon request of a Member State or on
its own initiative, the Commission shall decide whether infrastructure managers
which are part of a vertically integrated undertaking fulfil the requirements
of Article 7a and Article 7b and whether the implementation of these
requirements is appropriate to ensure a level playing field for all railway
undertakings and the absence of distortion of competition in the relevant
market.

2.      The Commission shall be entitled to
require all necessary information within a reasonable deadline from the Member
State where the vertically integrated undertaking is established. The
Commission shall consult the regulatory body or bodies concerned and, if
appropriate, the network of regulatory bodies referred to in Article 57.

3.      Member States may limit the rights of
access provided for in Article 10 to railway undertakings which are part of the
vertically integrated undertaking to which the infrastructure manager concerned
belongs, if the Commission informs Member States that no request has been made
in accordance with paragraph 1 or pending the examination of the request by the
Commission or if it decides, in accordance with the procedure referred to in
Article 62(2), that:

(a)     no adequate replies to the Commission
information requests in accordance with paragraph 2 have been made, or

(b)     the infrastructure manager concerned
does not fulfil the requirements set out in Articles 7a and 7b, or

(c)     the implementation of requirements set
out in Articles 7a and 7b is not sufficient to ensure a level playing field for
all railway undertakings and the absence of distortion of competition in the
Member State where the infrastructure manager concerned is established.

The Commission shall decide within a
reasonable period of time.

4.      The Member State concerned may request
the Commission to repeal its decision referred to in paragraph 3, in accordance
with the procedure referred to in Article 62(2), when that Member State
demonstrates to the satisfaction of the Commission that the reasons for the
decision do not exist any longer. The Commission shall decide within a
reasonable period of time.

5.      Without prejudice to paragraphs 1 to
4, the on-going compliance with the requirements set out in Articles 7a and 7b shall
be monitored by the regulatory body referred to in Article 55. Any applicant
shall have the right to appeal to the regulatory body if it believes that these
requirements are not complied with. Upon such an appeal, the regulatory body
shall decide, within the time-limits indicated in Article 56(9), on all the
necessary measures to remedy the situation.

Article 7d

Coordination Committee

1.      Member States shall ensure that infrastructure
managers set up and organise Coordination Committees for each network.
Membership of this committee shall be open at least to the infrastructure
manager, known applicants in the sense of Article 8(3) and, upon their request,
potential applicants, their representative organisations, representatives of
users of the rail freight and passenger transport services and, where relevant,
regional and local authorities. Member State representatives and the regulatory
body concerned shall be invited to the meetings of the Coordination Committee
as observers.

2.      The Coordination Committee shall make
proposals concerning or advising the infrastructure manager and, where
appropriate, the Member State on:

(a)     the needs of applicants related to the
maintenance and development of the infrastructure capacity;

(b)     the content of the user-oriented
performance targets contained in the contractual agreements referred to in
Article 30 and of the incentives referred to in Article 30(1) and their
implementation;

(c)     the content and implementation of the
network statement referred to in Article 27;

(d)     the charging framework and rules set
by the State and the charging scheme established by the infrastructure manager
in accordance with Article 29 and the level and structure of infrastructure
charges;

(e)     the process for allocation of
infrastructure capacity, including priority rules for the allocation of
capacity between different categories of infrastructure users;

(f)      issues of intermodality;

(g)     any other issue related to the
conditions for access and use of the infrastructure and the quality of the
services of the infrastructure manager.

The Coordination Committee shall have the power
to request relevant information from the infrastructure manager on points (a)
to (g) in order to be able to carry out these tasks.

3.      The Coordination Committee shall draw
up rules of procedure that include, in particular, rules on participation in
and frequency of meetings which shall be at least quarterly. A report of the
Coordination Committee’s discussions shall be submitted annually to the
infrastructure manager, the Member State, the regulatory body concerned and the
Commission with an indication of the respective positions taken by the Committee
members.

Article 7e

European Network of Infrastructure Managers

1.      Member States shall ensure that
infrastructure managers participate and cooperate in a network to develop the Union
rail infrastructure, in particular to ensure timely and efficient
implementation of the trans-European transport network, including the core
network corridors, rail freight corridors according to Regulation (EU) No 913/2010[11] and the European Rail Traffic
Management System (ERTMS) deployment plan laid down in Decision 2012/88/EU[12].

The
Commission shall be a member of the Network. It shall coordinate and support the
work of the Network and make recommendations to the Network, as appropriate. It shall ensure the
active cooperation of
the appropriate infrastructure managers.

2.      The Network shall participate in the
market monitoring activities referred to in Article 15 and benchmark the
efficiency of infrastructure managers on the basis of common indicators and
quality criteria, such as the reliability, capacity, availability, punctuality
and safety of their networks, asset quality and utilisation, maintenance,
renewals, enhancements, investments and financial efficiency.

3.      The Commission may adopt measures setting
out the common principles and practices of the Network, in particular to ensure
consistency in benchmarking, and the procedures to be followed for cooperation
in the Network. Those measures shall be adopted by means of an implementing act
in accordance with the procedure referred to in Article 62(3).’

5.           Article 10 is amended as
follows:

(a)
paragraph 2 is replaced by the following:

‘2.        Railway undertakings shall be
granted, under equitable, non-discriminatory and transparent conditions, the
right of access to railway infrastructure in all Member States for the purpose
of operating all types of rail passenger services. Railway undertakings shall
have the right to pick up passengers at any station and set them down at
another. That right shall include access to infrastructure connecting service
facilities referred to in point 2 of Annex II.’;

(b)
paragraphs 3 and 4 are deleted.

6.           Article 11 is amended as
follows:

(a)
paragraph 1 is replaced by the following:

‘1.        Member States may limit the right of
access provided for in Article 10(2) to passenger services between a given place
of departure and a given destination when one or more public service contracts cover
the same route or an alternative route if the exercise of this right would
compromise the economic equilibrium of the public service contract or contracts
in question.’;

(b)
the first subparagraph of paragraph 2 is
replaced by the following:

'In order to determine whether the economic
equilibrium of a public service contract would be compromised, the relevant
regulatory body or bodies referred to in Article 55 shall make an objective
economic analysis and base its decision on pre-determined criteria. They shall
determine this after a request from any of the following, submitted within one
month from the information on the intended passenger service referred to in
Article 38(4):

(a)     the competent authority or competent
authorities that awarded the public service contract;

(b)     any other interested competent
authority with the right to limit access under this Article;

(c)     the infrastructure manager;

(d)     the railway undertaking performing the
public service contract.’;

(c)
paragraph 3 is replaced by the following:

‘3.        The regulatory body shall give the
grounds for its decision and the conditions under which a reconsideration of
the decision within one month of its notification may be requested by one of
the following:,

(a)     the relevant competent authority or
competent authorities;

(b)     the infrastructure manager;

(c)     the railway undertaking performing the
public service contract;

(d)     the railway undertaking seeking access.’;

In case the regulatory body decides that the
economic equilibrium of a public contract would be compromised by the intended
passenger service referred to in Article 38(4), it shall indicate possible
changes to such service which would ensure that the conditions to grant the
right of access provided for in Article 10(2) are met.';

(d)
paragraph 5 is deleted.

7.           The following Article 13a is
inserted:

‘Article 13a

Common information and integrated ticketing
schemes

1.      Without prejudice to Regulation (EC)
No 1371/2007[13]
and Directive 2010/40/EU[14],
Member States may require railway undertakings operating domestic passenger
services to participate in a common information and integrated ticketing scheme
for the supply of tickets, through-tickets and reservations or decide to give
the power to competent authorities to establish such a scheme. If such a scheme
is established, Member States shall ensure that it does not create market
distortion or discriminate between railway undertakings and that it is managed
by a public or private legal entity or an association of all railway undertakings
operating passenger services.

2.      Member States shall require railway
undertakings operating passenger services to put in place and coordinate
contingency plans to provide assistance to passengers, in the sense of Article
18 of Regulation (EC) No 1371/2007, in the event of a major disruption to
services.’

8.           In Article 38, paragraph 4
is replaced by the following:

‘4.      Where an applicant intends to request
infrastructure capacity with a view to operating a passenger service, it shall
inform the infrastructure managers and the regulatory bodies concerned no less
than 18 months before the entry into force of the working timetable to which
the request for capacity relates. In order to enable regulatory bodies
concerned to assess the potential economic impact on existing public service
contracts, regulatory bodies shall ensure that any competent authority that has
awarded a rail passenger service on that route defined in a public service
contract, any other interested competent authority with the right to limit
access under Article 11 and any railway undertaking performing the public
service contract on the route of that passenger service is informed without
undue delay and at the latest within five days.’

9.           In Article 63, paragraph 1
is replaced by the following:

'1.      By 31 December 2024, the Commission
shall evaluate the impact of this Directive on the rail sector and shall submit
to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions a report on its implementation.

By the same date, the Commission shall assess
whether discriminatory practices or other types of distortion of competition
persist in relation to infrastructure managers which are part of a vertically
integrated undertaking. The Commission shall, if appropriate, propose new legislative
measuress.'

Article 2

1.           Member States shall adopt
and publish, by [18 months after entry into force] at the latest, the laws,
regulations and administrative provisions necessary to comply with this
Directive. They shall communicate to the Commission the text of those
provisions immediately.

When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall
determine how such reference is to be made.

2.           Member States shall
communicate to the Commission the text of the main provisions of national law
which they adopt in the field covered by this Directive.

Article 3

1.           This Directive shall enter
into force on the day following that of its publication in the Official Journal
of the European Union.

2.           Points 5 to 8 of Article 1
shall apply from 1 January 2018 [in time for the working timetable starting on
14 December 2019].

Article 4

This
Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament                       For
the Council

The
President                                                 The President

[1]               White Paper : Roadmap to a Single European
Transport Area – Towards a competitive and resource

efficient transport system ;
COM(2011)144

[2]               Better Governance for the Single Market ;
COM(2012)259

[3]               Communication from the Commission : Europe
2020 ; A strategy for smart, sustainable and inclusive growth ;
COM(2010) 2020

[4]               OJ C , , p. .

[5]               OJ C , , p. .

[6]               OJ L164, 30.4.2004, p. 164.

[7]               OJ L315, 3.12.2007, p. 44.

[8]               OJ L 343, 14.12.2012, p. 32.

[9]               OJ C 369, 17.12.2011, p. 14.

[10]             OJ L 24, 29.1.2004, p. 1.

[11]             OJ L 276, 20.10.2010, p. 22.

[12]             OJ L 51, 23.2.2012, p. 51.

[13]             OJ L315, 3.12.2007, p. 14.

[14]             OJ L207, 6.8.2010, p. 1.